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Terms of Service & Acceptable Use Policy (“Dedicated Hosting Agreement”)
By purchasing the Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that XpresServers may establish and post on its website from time to time.
Description of Services
XpresServers provides the Services to its customers for a monthly fee. XpresServers will provide You an account on one or more of its dedicated servers, provided, however, You abide by the terms and conditions set forth in this Agreement and in any other agreement pertaining to other services you may purchase. XpresServers reserves the right to modify its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services. XpresServers shall use reasonable efforts to notify You in advance of any planned changes to XpresServers’s network or facilities that may adversely affect the Services provided under this Agreement.
Fees for Services ordered by You shall be charged beginning on the date of the initial order and that date shall serve as the monthly anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date of each month.
From time to time it may be necessary to make adjustments in the fees and surcharges charged for the Services in order to cover certain changing costs (e.g., power) incurred by XpresServers in providing the services. Such adjustments will be reflected on the statement or invoice provided to you for the Services, and you agree to pay for the fees and surcharges for the Services, as adjusted.
XpresServers provides several options for payment:
- Credit Card on File. When you place a credit card on file with XpresServers, we will, typically, bill the card a few days before your invoice is due. If the credit card charge is expired, not authorized or declined by our processing company, we will notify you via E-mail. We request that you update your card promptly. If your invoice becomes more than 3-days past due (from the invoice Due Date) then XpresServers reserves the right to suspend service or terminate service after 5 days past due until payment is received.
- Checks, Money Orders, Wire Transfers and Pay Pal payments. XpresServers accepts both checks and money orders. In the event a check is returned, XpresServers will charge a returned check fee of $35.00 or, if less, legal limit in Your state or country. You are responsible for payment of all bounced check fees. In the event Your invoice is 3-days or more past due (from the invoice Due Date) then XpresServers reserves the right to suspend service or terminate service after 5 days past due until payment is received.
XpresServers reserves the right to charge a late fee of 1.5% per invoice per month on late payments. Invoices will be automatically considered late once the invoice due date has passed.
In the event you fail to pay your invoice within 3 days of the due date, we reserve the right to suspend your service.
If you are still past due on the 5th day from the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.
If you are terminated for non-payment, we also reserve the right to refer your account to a third party collection agency and you agree to pay any collection fees or legal fees we may be charged to collect on your debt.
“Overage” is defined as usage of the Services provided by XpresServers to You in excess of the allocated limitation. Overages are charged for SAN, Backup, Bandwidth and Professional Services (administrative time) used in excess of the amount allocated to Your account.
You agree to pay the then-current Overage fees and charges for the XpresServers services, including backup and bandwidth Overage fees, upon receipt of an invoice. Overage rates are set and published on our website at http://www.XpresServers.com/servers/addon_pricing.php. Usage information is available in LEAP and through your XpresServers Account Executive.
Overage fees can be avoided by subscribing to a higher service plan.
Cancellation and Refunds
XpresServers is not able to schedule cancellation for a specific time or date. To submit a cancellation request, please visit http://cancel.XpresServers.com and follow the on-screen instructions. When you request cancellation, we will follow this process: We will first contact you to confirm the cancellation and verify that you are authorized under your account to cancel it. Then, we will immediately suspend billing and cancel the server. We are not able to provide scheduled cancellations and all cancellations are effective immediately. Regarding mid-month or mid-period cancellations, XpresServers will not issue pro-rated refunds for cancellations received in the middle of a payment cycle.
Refunds will not be given on a pro-rated basis for Services provided in a given billing period. Receipt by you of any Services in a given period will obligate you to pay for the Services during that entire billing period.
Term and Termination and Money Back Guarantee
You agree to a month to month term for the Services unless otherwise agreed to in writing. The month to month term for services is automatically renewed each month unless either party notifies the other in writing of its desire that the Agreement not be renewed, no later than three (3) days before the next upcoming anniversary date for billing. You may cancel Your account by terminating this Agreement in this manner by contacting the XpresServers billing department.
XpresServers may terminate this Agreement effective immediately and without notice upon any breach by You of any of the terms of this Agreement. In such event, XpresServers shall have no obligation to refund any fees paid in advance by You.
At this time, XpresServers does not offer a refund-based MBG of any kind.
Chargebacks and Payment Disputes
Under this Terms of Service agreement you must first contact XpresServers to attempt to resolve any billing disputes before contacting your bank or credit card company to dispute the charges. You further agree that any billing disputes must be submitted in writing to our billing department within one month of the invoice payment in question.
By using our services You agree to the above policy and to contact XpresServers before contacting your financial institution to seek a resolution.
In the event you dispute charges contrary to this agreement, we reserve the right to refer your account or sell your debt (plus any applicable fees) to a third party collection agency. We also reserve the right to take further legal action against you.
Promotional or Special Offers: Pre-payment Offers
From time to time, XpresServers may offer discounted pricing for initial introductory periods (e.g., discounted fees for the first months service.) A condition of such discounted pricing may be the requirement that prepayment for a period longer than the introductory period be paid. For example, the first month’s service may be offered for a discount, with the standard pricing going into effect during the second month, with a quarterly prepayment being required. Promotional offers are non-refundable.
Promotional or Special Offers: Other Types of Offers
From time to time, XpresServers may offer promotional or special offers as sales incentives. These offers may be comprised of discounts, free time, free services, discounted services, trial offer periods and other types of offers. Such offers cannot be combined with other offers unless otherwise stated and are one-time use offers. One offer per client only. Offers are valid only where they are permitted by law. Offers are void where prohibited. Some offers (example: “Three Months Free Load Balancing Service”) require You, the Client, to contact XpresServers prior to the expiration of the trial period in order to avoid being re-billed. Offers which provide a discounted monthly rate for a specified period of time will reset automatically to the full monthly rate once the promotional period has passed and You, the Client, agree to pay, in full, the full monthly rate, unless You cancel in advance.
Any abuse towards any XpresServers employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner, when emailing, calling or submitting online tickets to XpresServers. Any cursing, yelling, or further intentional disruptive behavior aimed at XpresServers or its employees shall be considered a violation of this Terms of Service agreement.
Any threat; whether orally, verbally, in written, via E-mail, via Live Chat, delivered by second parties or delivered in any other way, and directed towards XpresServers or any of XpresServers’s employees, partners, staff, contractors, sub-contractors, facilities, offices, etc. shall be construed as a violation of this Terms of Service agreement. Threats of physical violence will be directed to the proper authorities.
No refunds shall be given when the above Tortuous Conduct clause is violation and necessitates the termination of an account or services.
License to Host
You hereby grant to XpresServers a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary to provide the Services under this Agreement: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any content uploaded by You; and (b) make archival or backup copies of content uploaded by You to the XpresServers servers. XpresServers shall have the right, but not the obligation, to make backup copies of the data uploaded by You to the XpresServers servers. You are responsible for any of your content residing on XpresServers’s servers and for the backup thereof.
Storage and Security
At all times, You bear full risk of loss of any content and software you place on the XpresServers servers. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server.
XpresServers does not undertake any obligation to provide management or security services unless you specifically request it to do so. If any technology specifically associated with your account requires updating, You must make a request for such update through XpresServers’s ticketing system.
You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your content; (ii) maintain independent archival and backup copies of Your content; and (iii) ensure the security, confidentiality and integrity of Your content transmitted through or stored on XpresServers servers. XpresServers shall have no liability to You or any other person for loss, damage or destruction of any of Your content.
“Uptime” refers to the amount of time the Services are available, as measured solely and only by XpresServers’s internal monitoring systems. “Downtime” refers to the amount of time the Services are unavailable, as measured solely and only by XpresServers’s internal monitoring systems. XpresServers guarantees that its Networking and Connectivity services will be available 100% of the time. In the event such level of service is not provided, XpresServers will credit your account in an amount as determined in the chart below, reflecting credit percentages of the monthly fees paid by You to XpresServers for the Services, but not payments made for any of the following products and services: domain name registration, software licenses, IP address charges, set up fees, shipping and handling, SSL certificate fees, labor charges, and other services which are unrelated to Uptime.
- 100% will result in a credit of: 0%
- 99.1% to 99.9% will result in a credit of: 5%
- 98% to 99% will result in a credit of: 10%
- 95% to 97.9% will result in a credit of: 25%
- 90% to 94.9% will result in a credit of: 50%
- 89% or below will result in a credit of: 100%
To receive a credit, You must make a request by sending an email message to billing@XpresServers.com. Each request in connection with this Agreement must include the dates and times of the Downtime, the name and IP address of the server or servers which experienced the Downtime. The request must be received by XpresServers within ten (10) business days after the incident of Downtime. If the unavailability is confirmed by XpresServers, credit will be applied to Your XpresServers account within thirty (30) days of receipt of Your credit request.
The total amount credited to You in a particular month under this Agreement shall not exceed the total amount of fees paid by You for such month for the affected Services. Credits are exclusive of any applicable taxes charged to You or collected by XpresServers and are Your sole and exclusive remedy with respect to any Downtime.
The provisions of the Agreement pertaining to Force Majeure are unaffected by these terms referring to Uptime Guarantee. Moreover, downtime caused by any of the following shall not result in any obligation by XpresServers to provide credit to You:
- emergency maintenance
- scheduled maintenance
- system upgrades
- domain name system (DNS) problems outside of XpresServers’s control
- issues with FTP, POP, IMAP, or SMTP customer access
- Acts or omissions by You or any of Your employees or agents, resulting in downtime
- Any negligence, willful misconduct, or use of the services in breach of XpresServers’s Acceptable Use Policy
- Problems with users’ web browsers, DNS, or other caching that might make it appear the Services are unavailable even though others can still access the XpresServers servers.
Hardware Replacement Guarantee
XpresServers strives to maintain the integrity of the hardware used to provide its services, and any Downtime caused by hardware failure shall be credited pursuant to this Agreement. XpresServers maintains a stock of all essential hardware necessary to provide the Services. XpresServers shall replace any and all substantially malfunctioning hardware within 1 hour of XpresServers becoming aware of such substantial malfunction.
The amount of time for replacement of hardware shall be measured from the moment that XpresServers determines that the hardware must be replaced, and does not include time spent diagnosing the problem, researching other solutions, investigating the cause of the failure or time spent installing software, restoring backups or other, similar situations.
In the event that XpresServers fails to meet this hardware replacement guarantee, XpresServers will issue, to You, account credits in the amount of 10% of the base monthly server rent for each hour after the first hour of the monthly service fee for the server in question to a maximum of 50% of the cost of the server itself (excluding any management, upgrades or additional services associated with the server in question.)
To receive a credit, You must make a request by sending an email message to billing@XpresServers.com. Each request in connection with this Agreement must include the dates and times of the hardware replacement situation, the name and IP address of the server or servers which experienced delayed replacement. The request must be received by XpresServers within ten (10) business days after the incident. Upon confirmation by XpresServers, credit will be applied to Your XpresServers account within thirty (30) days of receipt of Your credit request.
You agree not to use the Services to:
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
- administer IRC;
- harm minors in any way;
- impersonate any person or entity;
- “stalk” or otherwise harass another person;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- upload, post, email, transmit or otherwise make available any Content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or “pyramid schemes;”
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or
- collect or store personal data about other users in connection with the prohibited conduct and activities set forth in the paragraphs above.
Virtual Private Servers & Ressellers
All VPS do not come with any money back guarantee no matter if you claim unused or used. Please understand setting up server’s take’s time and money. XpresServers is not responsible for any data lost or hardware failure or back ups on any VPS this is your duty to ensure that you are backing up your data and your client’s data. All TOS apply to VPS client’s as well. The reseller/VPS customer is liable and responsible for all actions of their account and sub accounts created by the reseller/VPS customer. As the reseller/VPS customer you agree to accept all responsibility and liability for your actions and the actions of your sub users either directly or indirectly. Terms of Service violations as a result of a sub user account being exploited with or without knowledge will be the responsibility of the reseller/VPS account holder. The reseller & VPS account holder agrees to actively monitor their sub accounts to ensure all sub accounts and their own account are abiding by all of XpresServers policies and Terms Of Service. The legal liability and legal responsibility of the sub accounts of the reseller/VPS belongs to the reseller/VPS customer. Run Scape bots and mine craft are forbidden on any part of our network you will require a dedicated server for this due to resource usage. Please note we do not offer nor take back ups of VPS this is your duty and anyone who uses the vps duty to ensure they are backing up the data as we do not offer any back ups what so ever on VPS.
Zero Tolerance Policy for Unsolicited E-mail/Black Listing
“Unsolicited E-mail Complaint” is an occurrence of a third-party complaint regarding a specific E-mail communication message sent by You. “Unsolicited E-mail Incident” is an occurrence of a single E-mail message which may have been sent to multiple E-mail addresses. An Incident may contain numerous Complaints. Incidents may contain Complaints received up to 24 hours after the first. After 24 hours, a new Incident will be opened.
Black Listing: “IP Black Listing” is an occurrence when a third party black listing service determines that a XpresServers issued IP address is a frequent source of Unsolicited E-mail. Black Listings result in the IP address (or multiple IP addresses in the same “IP range”) being unable to send E-mail to certain third parties.
XpresServers has designed this portion of this Agreement to comply with the United States CAN-SPAM Act (the “Act”.) The Act states that commercial E-mail must be solicited, an effective, visible and clearly defined un-subscription process be in place, that every E-mail message sent be sent from a valid address, without any form of IP or source spoofing, that every E-mail message sent contain the physical contact information of the sender, that every recipient of such E-mail messages has requested to receive such E-mails and that the messages and method in which they were sent comply with the other provisions of the United States CAN-SPAM Act.
Zero Tolerance for Black Listing: XpresServers has a Zero Tolerance policy regarding Black Listings and considers any attempt to send Unsolicited E-mail Messages or other forms of Spam E-mail (including “Spamvertising” other websites or services or products) to be violations of this Agreement. If an IP address assigned to You is found to be Black Listed, XpresServers reserves the right to discontinue your services immediately with or without warning.
Furthermore XpresServers will levy a Black Listing processing fee of $200 for the first instance of IP Black Listing and $400 for the second instance of IP Black Listing (collectively, the “Penalties”.) If your service is terminated under the Unsolicited E-mail Policy then you forfeit all fees paid, including pre-paid fees and unused time. All fees paid become non-refundable. Further, account termination does not absolve or nullify Penalty payments you may owe to XpresServers. Further, you may accumulate additional Penalties based on complaints received after your termination. This section of the Agreement will survive for a period of one year after this agreement is terminated.
Disclaimer of Warranties
You acknowledge and agree that XpresServers exercises no control over, and accepts no responsibility for, the content of the information passing through the host computers, network hubs and points of presence or the Internet. NEITHER XpresServers, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT XpresServers PROVIDES. NEITHER XpresServers, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. XpresServers IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CLIENTELE VIA THE SERVICES PROVIDED BY XpresServers.
You agree to indemnify, hold harmless, and defend XpresServers and all directors, officers, employees, and agents of XpresServers from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) arising out of or relating to the use of the Services by You, including any violation of the Acceptable Use Policy set forth in this Agreement. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
Limitation of Liability
IN NO EVENT SHALL XpresServers BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF XpresServers HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will XpresServers’s liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by You for the Services during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. The provisions of this Agreement pertaining to Uptime Guarantee apply to credits available to you for system downtime.
XpresServers’s Utilization of Third Party Services
XpresServers reserves the right, and You agree to pay for, services of third party consultants hired by XpresServers in its discretion to assist XpresServers in providing the Services to you. Fees for the services of third parties retained by XpresServers will be charged to You in the invoice covering the period during which the third party services were utilized by XpresServers.
XpresServers shall not be liable for failure or delay in performing its obligations under this Agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, terrorist or other attack, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
You represent and warrant that Your use of the Services shall not infringe the intellectual property or other proprietary rights of XpresServers or any third party. You further acknowledge that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of XpresServers is owned by XpresServers and/or its licensors. Unless otherwise specifically provided in this Agreement, You shall have no right, title, claims or interest in or to XpresServers’s intellectual property.
You shall not copy, modify or translate any XpresServers intellectual property or related documentation, or decompile, disassemble or reverse engineer same, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, You are not authorized to distribute or to authorize others to distribute XpresServers intellectual property in any manner without the prior written consent of XpresServers.
XpresServers respects the intellectual property of others, and we ask You to do the same. XpresServers may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers.
Governing Law and Forum Selection
This Agreement shall be interpreted and construed according to, and governed by, the laws of the State of Illinois. The Circuit Court of Cook County, Illinois shall have exclusive jurisdiction to hear any dispute under this Agreement, or, if such court is without subject matter jurisdiction, the United States District Court for the Northern District of Illinois shall have exclusive jurisdiction.
Waiver and Modification
Except as otherwise provided herein, this Agreement may not be amended except through a writing executed by the parties. Any failure or delay in exercising any right, remedy, or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.
Assignment and Severability
This Agreement shall be binding upon and inure to the benefit of You, XpresServers and their respective successors, and assigns. You may not assign this Agreement without the prior written consent of XpresServers, which consent will not be unreasonably withheld. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
Additional Incorporated Agreements
Additional amendments to the Agreements, when noted, are amendments to this Agreement and are to be incorporated into it. Examples include terms and conditions for promotional offers and other additional terms and conditions.
XpresServers reserves the right to modify this agreement as needed without notice, and You agree that by creating, using, or otherwise engaging in business with XpresServers, that You have fully read, fully understand and agree to these Terms and Conditions. You understand that the Terms and Conditions in the Agreement are legally binding and that you are authorized to enter into such agreements on behalf of Your organization or Yourself